USCA4 Appeal: 24-1009 Doc: 31 Filed: 12/03/2024 Pg: 1 of 11

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-1008

R.A., Individually, and as lawful guardian ad litem of Minor Child G.A.,

Plaintiff – Appellee,

v.

RHONDA MCCLENAHAN; ALISHA CLOER; ALVERA LESANE,

Defendants – Appellants,

and

BRADY JOHNSON; IREDELL-STATESVILLE BOARD OF EDUCATION; ANDREW MEHALL; ROBIN JOHNSON,

Defendants.

No. 24-1009

R.A., Individually, and as lawful guardian ad litem of Minor Child G.A.,

Plaintiff – Appellee,

v.

BRADY JOHNSON,

Defendant – Appellant,

and USCA4 Appeal: 24-1009 Doc: 31 Filed: 12/03/2024 Pg: 2 of 11

ALISHA CLOER; ALVERA LESANE; IREDELL-STATESVILLE BOARD OF EDUCATION; RHONDA MCCLENAHAN; ANDREW MEHALL; ROBIN JOHNSON,

Defendants.

Appeals from the United States District Court for the Western District of North Carolina, at Statesville. Kenneth D. Bell, District Judge. (5:20−cv−00192−KDB−SCR)

Argued: October 31, 2024 Decided: December 3, 2024

Before WILKINSON, KING, and THACKER, Circuit Judges.

Reversed by published opinion. Judge Wilkinson wrote the opinion, in which Judge King and Judge Thacker joined.

ARGUED: Sullivan Collins Saint, BROOKS PIERCE, Greensboro, North Carolina, for Appellants. Stacey Marlise Gahagan, GAHAGAN PARADIS, PLLC, Durham, North Carolina, for Appellees. ON BRIEF: Erin M. Barker, Greensboro, North Carolina, Gary S. Parsons, BROOKS PIERCE, Raleigh, North Carolina, for Appellant Brady Johnson. Steven A. Bader, RaShawnda M. Williams, CRANFILL SUMNER, LLP, Raleigh, North Carolina, for Appellants Rhonda McClenahan, Alisha Cloer, and Alvera Lesane.

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WILKINSON, Circuit Judge:

We deal here with the unfortunate instance of a district court failing to follow our

clear mandate to dismiss the state law claims against the school officials in this case. We

again reverse the judgment and reiterate what we said in the prior appeal—that the state

law claims were not remanded for further proceedings but were instead to be dismissed.

No exceptions to the mandate rule applied, and their invocation here would risk allowing

the exceptions to swallow the rule.

I.

This lawsuit began in February 2021 when appellee R.A. brought suit against her

son G.A.’s special education teacher Robin Johnson and several school officials for Ms.

Johnson’s mistreatment of G.A. during the first and second grades. The complaint alleged

that Ms. Johnson repeatedly subjected G.A. to physical and emotional abuse and that the

school officials knew of the abuse but negligently failed to intervene. The school officials

moved to dismiss the negligence counts against them, claiming that they were “barred by

public official immunity and should be dismissed with prejudice.” J.A. 158. The district

court denied the motion and the school officials filed a timely interlocutory appeal. ∗ See

Bailey v. Kennedy,

, 738–39 (4th Cir. 2003) (denial of official immunity under

North Carolina law is immediately appealable).

∗ The complaint also included federal constitutional and statutory claims. The district court granted the school officials’ motion to dismiss the federal claims against them. That dismissal has not been appealed.

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On appeal, we agreed with the school officials and held that “their immunity

requires that the state law claims against them be dismissed.” R.A. v. Johnson,

, 540 (4th Cir. 2022). Our opinion began by explaining that the school officials were

“presumptively entitled to public official immunity for their exercise of discretion in

overseeing their school district.”

. We then rejected the contention that the

immunity was pierced because the school officials acted with malice, an exception to

official immunity under North Carolina law. Our analysis focused on North Carolina cases

establishing that an official acts with malice only when he “intends to be prejudicial or

injurious to another.”

at 545 (quoting Grad v. Kaasa,

(1984)). This

high bar for liability, we explained, “serves to stem the tide of litigation” that would ensue

if public officers “were constantly exposed to the threat of personal liability” for

discretionary decisions. Id. at 542. Applying this standard, we thought that the school

officials’ failure to “investigate and report Ms. Johnson’s behavior” showed at most that

they were “recklessly indifferent” to the situation, not that they “maliciously intended to

cause G.A. harm such that the immunity [was] pierced.” Id. at 546. We concluded that the

“state law claims against appellants must thus be dismissed, and the district court’s decision

to the contrary is reversed.” Id.

The district court, however, did not dismiss the claims but allowed them to proceed.

It granted R.A. leave to file an amended complaint reasserting the very same claims against

the school officials that we dismissed, this time with additional “details” based on “new

evidence” obtained from police records. J.A. 534–35 (motion to file amended complaint).

The new details primarily consisted of allegations that the school officials received

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complaints from several parents about Ms. Johnson abusing their children. The school

officials again moved to dismiss. They argued that our mandate required dismissal and that

the amended complaint still failed to pierce the immunity.

The district court denied the motion to dismiss. It thought its failure to dismiss was

harmless because it construed our mandate to leave it “the discretion to dismiss the claims

with or without prejudice.” J.A. 990 (order denying motion to dismiss). In support of this

interpretation, the court cited a sentence in a footnote from a concurring opinion suggesting

that “on remand the district court should consider rendering the dismissal of these

negligence claims as without prejudice to allow R.A. a chance to amend her complaint.”

Johnson, 36 F.4th at 547 n.1 (Motz, J., concurring in the judgment). Turning to the merits,

the district court thought that the immunity was pierced because the history of complaints

against Ms. Johnson plausibly suggested that the school officials acted with a malicious

intent to injure G.A.

The school officials timely appealed on both issues. Because we hold that our

mandate required dismissal with prejudice, we do not reconsider the immunity issue on the

merits.

II.

In our hierarchical judicial system, it is “axiomatic” that our decisions “bind the

district courts just as decisions of the Supreme Court bind” us. Doe v. Chao,

(4th Cir. 2007). Hierarchical systems, with their respect for entry-level resolution

succeeded by review, exist to deflect the perception that justice is definitively dispensed

by a single hand.

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A corollary of this principle is the mandate rule, which requires district courts to

“implement both the letter and spirit” of our mandate after we decide a case on appeal.

United States v. Bell,

(4th Cir. 1993). This rule rests not on the belief that

“appellate courts are somehow superior or always correct,” but rather on the need to protect

the “essential nature of an appeal” and ensure “finality in litigation.” Doe,

.

A.

With this principle in mind, we first address whether the district court violated our

mandate. There is no question that it did. At the end of our opinion we instructed the district

court that the school officials were “entitled to immunity” and that the “state law claims

against [them] must thus be dismissed.” Johnson, 36 F.4th at 546. Despite this conclusion,

the district court did not dismiss the claims as instructed but allowed them to continue. This

was impermissible. When we order dismissal, the district court is “not free to do anything

else but to dismiss.” Invention Submission Corp. v. Dudas,

(4th Cir.

2005).

Notwithstanding these instructions, the district court took the view that our mandate

left it the discretion to grant a dismissal without prejudice, meaning that R.A. would have

been free to refile the claims even if they had been dismissed. This reading of our mandate

was at odds with basic principles of civil procedure. The dismissal was not for some “defect

in subject matter jurisdiction,” which is routinely dismissed “without prejudice.” S. Walk

at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC,

(4th Cir. 2013). It was for failure to state a claim on which relief can be granted, and

it is well established that a dismissal “for failure to state a claim is with prejudice unless

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the court specifically orders dismissal without prejudice.” Ostrzenski v. Seigel,

(4th Cir. 1999).

The source of this rule lies in Federal Rule of Civil Procedure 41(b), which says that

a dismissal, “except one for lack of jurisdiction, improper venue, or failure to join a party,”

is “an adjudication on the merits” unless the court “states otherwise.” Fed. R. Civ. P. 41(b).

The phrase “adjudication on the merits” in this context simply means “with prejudice.”

Semtek Int’l Inc. v. Lockheed Martin Corp.,

(2001). Rule 41(b) therefore

sets up a “default rule”: a dismissal is with prejudice unless (1) it is for one of the excepted

grounds or (2) the court “states otherwise.” Payne ex rel. Estate of Calzada v. Brake,

(4th Cir. 2006) (quoting Semtek Int’l,

).

Neither qualification applies here. Start with the proviso for dismissals predicated

on “lack of jurisdiction, improper venue, or failure to join a party.” Fed. R. Civ. P. 41(b).

In Costello v. United States,

(1961), the Supreme Court read this

exception to encompass any dismissal based on some “initial bar” to the court reaching the

merits. As we mentioned earlier, our prior decision did not involve an “initial bar” to the

merits. It held that R.A. “failed to state a claim” because the school officials were “entitled

to immunity under North Carolina law” and it could not be shown that “the officials

maliciously intended to cause G.A. harm such that the immunity [was] pierced.” Johnson,

36 F.4th at 544, 546. Our ruling was thus plainly on the merits.

The district court, however, concluded otherwise. It found it significant that we held

that “R.A. had not sufficiently alleged malice, rather than that no set of facts existed to

support [her] claim.” J.A. 990 (district court order) (emphasis added). We think the

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distinction is without a difference. Semantics aside, our holding was that “the allegations

in the complaint d[id] not state a ground for relief” under North Carolina law, and it is

“well settled” that a dismissal on such grounds is one “on the merits.” Bell v. Hood,

(1946); see also Brownback v. King,

, 216–17 (2021) (“‘If the

judgment determines that the plaintiff has no cause of action’ based ‘on rules of substantive

law,’ then ‘it is on the merits.’” (quoting Restatement (First) of Judgments § 49, cmt. A

(Am. Law. Inst. 1942))).

Having concluded that Rule 41(b)’s exception clause is inapplicable, the remaining

question is whether our opinion modified the presumption of prejudice by “stat[ing]

otherwise.” It assuredly did not. Again, we held that the officials were “entitled to

immunity” and that the “state law claims against [them] must thus be dismissed.” Johnson,

36 F.4th at 546. We did not remand for further proceedings or leave the district court the

option to dismiss without prejudice. Cf. Carter v. Norfolk Cmty. Hosp. Ass’n, Inc.,

, 974–75 (4th Cir. 1985) (“[W]e remand for [the district court’s] decision whether

to dismiss with or without prejudice”).

In fact, we made it unmistakably clear that these claims were not to be reasserted.

Our opinion began by emphasizing that public official immunity is “an immunity from suit,

not merely from liability,” and that an official’s immunity is “effectively lost” if the suit is

allowed to proceed. Johnson, 36 F.4th at 541. We later reiterated this concern, warning that

litigation “exacts heavy costs in terms of efficiency and expenditure of valuable time and

resources that might otherwise be directed to the proper execution of the work of the

Government.” Id. at 545 (quoting Ashcroft v. Iqbal,

(2009)). For these

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reasons, we expressly instructed the district court that “the suit cannot be allowed to move

forward to exact such costs” against the school officials.

Despite this directive, the district court inferred our permission to dismiss without

prejudice from a sentence in a concurring opinion raising it as a possibility. We must reject

this approach. Separate opinions undoubtedly serve valuable purposes, both as a source of

insight in the present and as a voice of persuasion in the future. Within the confines of the

case, however, it is the majority opinion that binds the district court, and, further, applies

precedentially. And as we have explained, the plain import of the majority opinion required

the court to dismiss the claims with prejudice.

B.

The final question we must address is whether the district court’s departure from

our mandate was justified by “extraordinary circumstances.” Bell, F.3d at 67. R.A.

contends that her discovery of prior parental reports against Ms. Johnson constitutes

“significant new evidence, not earlier obtainable in the exercise of due diligence.”

To

begin with, the district court neither invoked this exception nor made findings on the

novelty, significance, or prior unavailability of the evidence. In any case, we think this

evidence falls well below the threshold for the kind of new evidence that would warrant

setting aside our mandate.

For one, the evidence is not “new.” While R.A. may have discovered the additional

reports against Ms. Johnson recently, the basic thrust of the evidence is more of the same.

R.A.’s original complaint already alleged that the school officials were well aware of Ms.

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Johnson’s abusive behavior. That the officials may have had even more knowledge of her

misconduct is, for purposes of the mandate rule, cumulative and unrevelatory.

For a similar reason, the evidence cannot be considered “significant.” At bottom,

R.A.’s amended complaint forwards the same legal theory as the first—that the school

officials acted with malice by failing to investigate and report Ms. Johnson despite their

knowledge of her abusive behavior. While evidence of additional parent reports might

strengthen this argument on the margins, it does not materially alter the nature of the case.

See Carmody v. Bd. of Trs. of Univ. of Ill.,

(7th Cir. 2018) (declining to

apply new evidence exception for similar reason). We have already rejected R.A.’s failure-

to-intervene theory and we decline to address it again on slightly different facts.

The mandate-rule exceptions are meant to account for truly “extraordinary

circumstances,” not to provide a second bite at the apple. The “new evidence” proffered

here is nothing more than redundant details dressed up as a smoking gun. If the exception

applied this broadly it would invite abuse by enabling parties to evade unfavorable

mandates simply by tacking on incremental allegations after losing an appeal. Such a result

would let the exception overrun the rule and reduce appellate mandates to empty

formalities.

III.

This appeal provides a perfect illustration of the mandate rule’s virtues and the chaos

that ensues when it is undermined. The appellees’ briefing attempted to drag us back into

the merits of the exact claim that was fully briefed and decided in the first appeal. This

disregard for finality burdened the parties and the court with the time and expense of an

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unnecessary appeal, to the detriment of other litigants awaiting their first opportunity for

review.

The hierarchical structure of the judiciary may sometimes cause courts to chafe at a

reversal, but one need not long contemplate the deleterious consequences that would follow

if mandates from higher authorities were routinely disregarded. Appellate caseloads are

rising, and one of the prime causes is that “a case in the district court is more likely than it

once was to produce two or more appeals, rather than just one.” RICHARD A. POSNER, THE

FEDERAL COURTS 118 (rev. ed. 2009). Our system would simply be “overrun if an

indefinite number of appeals were possible in a single lawsuit.” Id. at 338. The result would

be a slower and costlier legal system that leaves litigants mired in uncertainty and delay.

The decisions of the circuit courts of appeals are certainly not beyond criticism. The

wisdom of any judicial ruling is of course always open to debate. But when a litigant is

dissatisfied with the decision of a circuit court, it should file a petition for rehearing or seek

certiorari at the Supreme Court. What it should not do is return to the trial court and ask it

to undo the appellate court’s decision.

IV.

In sum, the “state law claims against appellants must thus be dismissed, and the

district court’s decision to the contrary is reversed.” Johnson, 36 F.4th at 546. We meant

what we said the first time.

REVERSED

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